Isaih Christopher Fankhauser v. Anneliese Kistler

• Court: Court of Appeals of Iowa
• Decided: October 30, 2024
• Docket: 23-1876
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1876 Filed October 30, 2024

ISAIH CHRISTOPHER FANKHAUSER, Petitioner-Appellant,

vs.

ANNELIESE KISTLER, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, David Porter, Judge.

A father appeals the district court’s order granting the mother physical care

of their child. AFFIRMED.

Danni J. Harris-Avery and Sydnee M. Waggoner of Whitfield & Eddy, P.L.C.,

Des Moines, for appellant.

Lisa Noble (until withdrawal) of Family Law Solutions of Iowa LLC, Des

Moines, and Jordan Weets (until withdrawal) of Law Offices of Robert S. Gitmeid

& Assoc., New York, New York, for appellee.

Anneliese Kistler, West Des Moines, self-represented appellee.

Considered by Tabor, C.J., and Chicchelly and Sandy, JJ. 2

SANDY, Judge.

Isaih Fankhauser, the father of A.K.F., born in 2022, appeals the district

court’s order setting custody, visitation, and support relating to the child. He

asserts that the district court erred in awarding primary physical care of the child

to the mother, Anneliese Kistler. Fankhauser argues the physical care provisions

of the order do not serve the best interest of the child and that he should be

awarded physical care of the child. We affirm the district court’s order granting

Kistler physical care.

I. Background Facts and Proceedings

Fankhauser and Kistler met in spring 2021 while working at Jordan Creek

Mall. They moved in together soon after. Kistler learned she was pregnant in

December and gave birth to the child in August 2022. Following birth Kistler served

as the child’s “primary caretaker,” although Fankhauser took part in some of the

child’s care as well, such as changing her diapers, feeding, and bathing her.

Testimony was presented indicating that Fankhauser has used LSD, Kistler

has used cocaine, and both parties abused alcohol and marijuana. Soon, tension

formed between the parties due to Kistler’s belief that Fankhauser was cheating

on her. The parties broke up and Fankhauser eventually moved into his parents’

home in the late summer of 2022.

Kistler experienced issues with depression during pregnancy that have

increased since the child’s birth. She has been diagnosed with postpartum

depression. Fankhauser testified to struggling with mental-health issues and has

been diagnosed with depression. In the past he struggled with suicidal thoughts

and would sometimes sleep for up to sixteen hours in a day, according to Kistler. 3

Kistler also testified that she “had to stop many suicide attempts,” but Fankhauser

claimed he has never acted on any suicidal ideation. He still struggles with his

depression but has developed coping skills. He also has other medical issues and

is diagnosed with Trichorhinophalangeal Syndrome, which causes bone and joint

malformations, distinctive facial features, intellectual disability, and abnormalities

of the skin, hair, teeth, sweat glands, and nails. Due in part to such diagnosis, as

well as his work schedule, Fankhauser’s mother often provided care to the child.

The parties have attempted a joint-physical-care arrangement, but Kistler

says Fankhauser did not attend co-parent therapy. Fankhauser claimed he

wanted to avoid Kistler because her behavior had become volatile during custody

exchanges. In August 2022, it was reported to the Iowa Department of Health and

Human Services (DHHS) that Fankhauser had become intoxicated to the level of

alcohol poisoning while in custody of the child. The investigation found that the

report was unfounded. Fankhauser testified that the child was not in his care that

night and that he had not suffered alcohol poisoning, but Kistler testified they were

present with the child together.

Fankhauser filed his custody petition in August 2022. The next month

Kistler claimed she became extremely ill and was bedridden for three weeks.

Fankhauser cared for the child full-time. He took custody of the child on

September 3. From September 3 to September 18, Kistler had limited if no

communication with Fankhauser. On September 18, Kistler texted Fankhauser to

ask about resuming the regular parenting schedule. Fankhauser refused and

claimed he believed Kistler had abandoned the child due to her failure to check in

during the period she was sick. He withheld Kistler’s visitation from September 18 4

until October 24. Fankhauser sporadically communicated with Kistler during that

time.

Fankhauser filed for a temporary hearing in October, and the parties

stipulated to temporary matters on November 14. Kistler claimed she only signed

the temporary matters stipulation so that she could restore her visits with the child.

On November 7, 2022, a second report was made to DHHS against

Fankhauser. Kistler alleged that Fankhauser sexually assaulted the child. The

child was subjected to a vaginal examination as part of the investigation. Kistler

alleged that Fankhauser sexually assaulted the child because he is “promiscuous.”

The report was investigated by the police department of Nevada as well as DHHS,

and was ultimately concluded to be unfounded. No charges were filed.

Trial was held May 4 to May 5, 2023. On May 5, the district court awarded

the parties joint legal custody and ordered that Kistler have a mental health

evaluation conducted. The proposed exhibit containing that evaluation was never

admitted by the court, and on November 15, 2023, the court entered its written

order awarding Kistler physical care of the child. Fankhauser now appeals.

II. Standard of Review

We review custody and physical care appeals de novo. In re Marriage of

Hansen, 733 N.W.2d 683, 690 (Iowa 2007). The district court’s factual findings

are given weight, “especially to the extent credibility determinations are involved.”

Id.

III. Discussion

Fankhauser argues the district court erred in awarding physical care of the

child to Kistler. He requests that physical care be awarded to him. 5

We resolve physical care disputes based on the result that is in the best

interest of the child rather than what the parents perceive to be fair to them. Id. at

695. In establishing an appropriate custody award, we are guided by three

statutory provisions.

First, Iowa Code section 598.41(1)(a) (2022) requires the district court to

establish a custody award that will, in part, ensure the child has the maximum

opportunity for continuing physical and emotional contact with both parents.

Second, Iowa Code section 598.41(1)(c) requires the district court to consider the

denial by one parent of the children’s opportunity for maximum continuing contact

with the other parent. Third, Iowa Code section 598.41(3) sets forth factors the

district court may consider in determining what custody arrangement is in the best

interest of the children. Among those factors are whether the parents can

communicate with each other regarding the children’s needs, and whether each

parent can support the other parent’s relationship with the children. Id. In choosing

which caregiver should be awarded physical care of children, the factors of

continuity, stability, and approximation are entitled to considerable weight.

Hansen, 733 N.W.2d at 696–97.

In terms of continuity, we consider which parent has historically been the

primary caretaker. In re Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct.

App. 1996). Continuity is closely related to approximation—in which we consider

“the proportion of time each parent spent performing caretaking functions for the

child prior to the parents' separation.” Hansen, 733 N.W.2d at 697. “We continue

to believe that stability and continuity of caregiving are important factors that must

be considered in custody and care decisions.” Id. at 696. 6

But we also consider “the denial by one parent of the child's opportunity for

maximum continuing contact with the other parent, without just cause, a significant

factor in determining the proper custody arrangement.” Id. at 700. Denial by one

parent of another parent’s access to the child speaks the ability of the parents to

“communicate and show mutual respect.” Id. at 698.

There is no dispute here that joint physical care is not appropriate. Neither

parent requested it. And even if one party had, the district court succinctly and

accurately summarized the level of conflict between the parties that makes joint

physical care inappropriate:

[Fankhauser] continues to struggle mightily in embracing all the obligations that come with fatherhood. But for his parents, [Fankauser] would be wholly incapable of caring for [the child]. As for [Kistler], it is patently obvious she has not moved past [Fankhauser]’s purported infidelity and the parties’ ultimate separation in July 2022. It would appear, [Kistler] is bound and determined to exact her revenge, no matter the cost. This Court is deeply concerned that [Kistler] will use the minor child as a means to that end. In short, the Court is thoroughly underwhelmed with both parties’ ability to co-parent, for different reasons.

Fankhauser argues that awarding physical care to Kistler is inappropriate because

Kistler has acted as the main impediment to the co-parenting relationship. We

disagree. It is true that Kistler has actively used the child as “leverage” to level

retribution and accusations against Fankhauser. She has also sent harassing text

messages and still questions him about seemingly innocuous interactions with

other women. And her false report of sexual abuse is inexcusable. But both

parties have exercised failures to co-parent, such as their inability to successfully

use a parenting app, which displays an inability for the parties to engage in basic

co-parenting functions. Although Kistler’s communication was not perfect, the 7

district court implicitly found that Kistler had a better record of communication than

did Fankhauser and that she would be the better communicator going forward. We

give deference to this finding because the district court was in a better position to

evaluate the evidence and testimony presented. The record available for our

review does not contradict such finding.

The district court found that Fankhauser withheld visitation from Kistler

when he had no right to do so. He did not file an emergency motion during the

period he withheld the child and still asserts that he did nothing wrong.1 The district

court found this failure to take responsibility revealed no willingness to change his

co-parenting philosophy going forward. Most concerningly, Fankhauser

repeatedly failed to effectively communicate with Kistler while the child was in his

primary care. Despite her other shortcomings, the issue of co-parenting ability

weighs in Kistler’s favor.

Fankhauser also challenges the district court’s assessment that he is

“wholly incapable” of caring for the child. He argues the district court penalized

him for having a “strong support system.” This is not the case. The district court

said that, “But for his parents, Petitioner would be wholly incapable of caring for

[the child].”

1 Even assuming that Kistler had gone AWOL and simply “flaked” out with no

justifiable excuse, such period was for essentially one visitation period Kistler would have otherwise been entitled to—and she shortly thereafter started communicating with Fankhauser again. While it is concerning that she seemingly cut off all inquiry or interest relative to the child during that period, such failure was not a basis to withhold visits until well into October on terms only agreeable to Fankhauser. Whether Fankhauser used that event as a bargaining chip to his advantage or out of genuine concern of his child; such finding was not explicitly made by the district court. But what is clear is that the district court disapproved of the action. 8

The district court’s finding that Fankhauser depends on his parents for the

child’s care revolved around his mental-health struggles. The district court cited

Fankhauser’s struggles in maintaining his mental health. There are periods where

he slept for most of the day for multiple days. And while he cited his coping

methods, Fankhauser still struggles with suicidal ideations. While it’s unclear the

extent to which he has ever acted on such ideations, both parties admit the

ideations have caused him problems, and he is still struggling with them. His

assertion that “stress” and feeling “overwhelmed” lead to these ongoing ideations

impedes Fankhauser’s ability to parent, particularly when considering his many

other parenting shortcomings.

The district court found that “the choices are between an absentee parent

and a bad one.” We do not disagree with that assessment. Whether Fankhauser

was absentee because of his past drug use, because of his depression, because

of his disease, or because of his work schedule is of no consequence. He was

absentee. And the label of physical caregiver following the temporary hearing

does not change that. Despite our holding, Fankhauser still enjoys joint legal

custody and regular visitation. But the child’s best interest is served by awarding

physical care to her mother. We accordingly affirm the district court’s order

awarding Kistler physical care of the child.

AFFIRMED.